Monday, May 17, 2010

Tort Law Basics

What is a Tort?-
A tort is a civil wrong (other than a breach of contract) that causes injury or other damage for which our legal system deems it just to provide a remedy. The primary focus of Tort Law is to repair a private wrong.

Purposes for Tort Law-

Peace: In order to provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands.”

Deterrence: To deter wrongful conduct.

Restoration: To restore injured parties to their original state by compensating them for their injury.

Justice: To identify those who should be held accountable for the harm that resulted.

Categories of Torts-
There are three main categories of torts:
1. Negligence
2. Intentional Torts
3. Strict Liability Torts

1. Negligence is harm caused by the failure to use reasonable care.
2. An intentional tort is a tort in which a person either desired to bring about the result or knew with substantial certainty that the result would follow from what the person did or failed to do.
Types of intentional torts include: battery, assault, trespass, and false imprisonment.
3. Strict liability is having responsibility regardless of blameworthiness or fault.

Civil vs Criminal Law

Civil law is the area of law that encompasses lawsuits brought by individuals who have suffered private wrongs for which they are seeking some form of compensations. Civil law includes tort law, property law, domestic relations law, contract law and probate law. Criminal law is the area of law that deals with the wrongs done to an individual that result in harm to society as a whole. The purpose of criminal law is to punish those who commit crimes such as murder, robbery, theft, arson and sexual assault.
Although the same act can be both a civil wrong and a criminal wrong (theft), several differences exist between civil and criminal law. The purpose of civil law is to compensate victims by providing them with some form of monetary damages. The purpose of criminal law is to punish those who have committed a wrong. Punishment is accomplished by confining and/or fining the wrongdoer. The civil law acts on behalf of the individual wronged and that individual brings suit to recover damages. The criminal law acts on behalf of the state, which is considered the offended party, and the prosecutor of the state represents the state in the courtroom.
The plaintiff (person who sues) has a burden of proof known as the preponderance of the evidence that must be shown in court. In the preponderance of the evidence burden of proof, the plaintiff must prove that it is more likely than not the defendant committed the wrong. In the beyond a reasonable doubt standard, the state must remove all reasonable doubts from the jurors’ minds.

Friday, May 14, 2010

Wills: Basic Information

A will provides one of the easiest ways of giving an individual a voice in how they want their property to be distributed and avoid legal problems that may arise when someone dies intestate. To die intestate means to die without a will. To avoid probate, a will must be carefully designed and well-drafted to meet the needs of the testator and their intended recipients.

Validity

To be valid a will must be:
Made by an adult
Made by someone with testamentary capacity
Created Voluntarily

Formality

A will can be formal meaning word processed, signed and properly witnessed. It can also be holographic, meaning hand written with no witnesses (check your states statutes to see if they recognize holographic wills), or nuncupative, meaning an oral will.

Changing a Will (codicil)

Changing the terms of a will is done through a codicil, which is a separate instrument with new provisions that change the original will in some way.

Revoking a Will

The act of revoking a will must be accompanied by the testator’s intent to revoke the will. There are three methods for revoking a will.
The execution of a new will revokes a prior will. To revoke a prior will in some states, the new will must either expressly state that it revokes an earlier will or be inconsistent with the old will.
The marriage of a person who has made a will revokes the will in some states unless the will declares that it is made in contemplation of marriage to a particular person.
A divorce or dissolution of marriage revokes bequests and devises to a former spouse but not the will itself.

Types of Marriages

The different types of marriages include a ceremonial marriage, common law marriage, putative marriage, successive marriage and proxy marriage.

Ceremonial Marriage-
The traditional marriage in the United States is a ceremonial marriage.

Common Law Marriage-
A common law marriage is an agreement between a man and a woman to enter into a marital relationship, to cohabitate, and who hold themselves out as husband and wife without complying with the formalities of a ceremonial marriage. Only thirteen states currently allow common law marriages. These include Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and in the District of Columbia.
If a common law marriage is created, it is recognized as valid by most other states. If the couple separates they must obtain a divorce to terminate their legal relationship because of this.

Putative Marriage-
A putative marriage is one in which at least one of the parties contracted to marry in good faith and without knowledge that some legal impediment existed to prevent a valid marriage. In a putative marriage, the innocent spouse makes a good faith commitment and goes through the ceremonial requirements for marriage.

Successive Marriages-
When a party is still married in the eyes of the state and marries another person, successive marriage exists. When there is evidence of more than one marriage, the law presumes the most recent one to be valid. This presumption may be rebutted by proof from the first spouse that the marriage never was terminated legally.

Proxy Marriage-
A proxy marriage is contracted or solemnized by one or more agents of the parties rather than by the parties themselves. These types of marriages are more likely during a war.

Qualities of Successful Paralegals

Ø P repared
Ø A nalytical
Ø R esilient
Ø A ble to work with details
Ø L ogical
Ø E ffective Communicator
Ø G ood professional judgment
Ø A ble to organize
Ø L iterate with computers

PREPARTION: Being prepared at all times is a must for successful paralegals. Their work must be completed within agreed-upon time frames no matter what their workload. Beyond that, they must anticipate what attorneys will need and be prepared to respond to these needs with little or no advance notice.

ANALYSIS: Analysis is required when preparing and reviewing documents as well as reading and applying the law. The ability to think critically and to find creative answers is essential.

RESILIENCY: Resiliency allows paralegals to adapt to changing circumstances and to persevere no matter what transpires. The litigation process can be very grueling and unpredictable, and attorneys’ moods can shift with the status of a case, so flexibility is a wonderful attribute.

ABILITY TO WORK WITH DETAILS: Being able to work with details is a key ingredient of paralegal success. Many paralegal tasks require astute attention to detail, and attorneys, who can sometimes be oblivious to the details of case management, rely on paralegals to attend to the minutiae they might overlook while attending to the planning of legal strategy.

LOGIC: Logic is the cornerstone of the law. Legal reasoning involves the application of legal principles to specific, factual situations and, therefore, requires the utilization of logic.

EFECTIVE COMMUNITION SKILLS: Having effective communication skills in both writing and speaking are vital to competent paralegals. They must be able to express themselves clearly, concisely, logically, and persuasively. Such skills allow them to work well with clients and other members of the legal team as well.

GOOD PROFESSIONAL JUDGMENT: Good professional judgment includes using suitable language, dressing appropriately, taking direction, responding appropriately to requests and questions, working within time constraints, and knowing when to ask for help.

ABILITY TO ORGANIZE: The ability to organize includes the ability to establish priorities, develop a work plan, delegate responsibility, and manage time. Efficiency allows successful paralegals to work for more than one attorney on more than one case simultaneously.

LITERACY IN COMPUTER TECHNOLOGY: Being computer literate is a must in today’s computer based legal environment. The more proficient paralegals are in using a variety of software programs, the more invaluable they are to the attorneys for whom they work.

Wednesday, February 3, 2010

Example Answer to Complaint

0 Small Claims 0 County Court 1 District Court
0 Probate Court 0 Juvenile Court 0 Water Court
Larimer County, Colorado
Court Address: 201 LaPorte Ave, Larimer County, Fort Collins, Colorado

Patty Plaintiff,

Plaintiff,

v.

Dennis Dimwit,

Defendant.
Tonya Morse
1235 Boardwalk Dr
Fort Collins, CO 80525
Phone Number: (307) 223-4567
FAX Number: (970) 223-9876
E-mail: tanyam@yahoo.com
Atty. Reg. #: 33455

Case Number: 08CV1234

Div.: Ctrm:

Answer

The Defendant, Dennis Dimwit, appears by and through his attorney, Tonya Morse, for his Answer to the Complaint herein, states as follows:

1. The Defendant agrees to the statements made in Paragraphs 1, 2 and 3 of the Complaint.

2. The Defendant admits the statements made in Paragraphs 4, 5, 6, 7 and 8 of the Complaint.

3. The Defendant denies the allegations set forth in Paragraphs 9, 10 and 11 of the complaint. The Plaintiff lacks information and knowledge sufficient to form a belief as to the allegations in Paragraphs 10 and 11 of the Complaint therefore denies the same.

4. The Defendant admits to the statements made in Paragraphs 12, 13 and 14 of the Complaint.


5. The Defendant admits to the statements made in Paragraph 15 and 16 of the Complaint.

6. The Defendant denies the allegations made in Paragraphs 17, 18, 19 and 20 because the Plaintiff lacks information and knowledge sufficient to form a belief to the allegations made in the Complaint and therefore denies the same.

7. The Defendant admits to the statement made in Paragraph 21 of the Complaint.

8. The Defendant denies the allegation made in Paragraph 22 of the Complaint. The Plaintiff lacks sufficient knowledge to form a belief as to the allegation in the Complaint and therefore denies the same.

9. The Defendant denies the statements made in Paragraphs 23, 24, 25 and 26 of the Complaint.

First Affirmative Defense

As and for an affirmative defense, defendant alleges that plaintiff’s right to maintain this action is barred by the statute of limitations in that more than two years have elapsed between plaintiff’s alleged cause of action and the filing of their complaint.

Second Affirmative Defense

As and for an affirmative defense, defendant alleges that Plaintiff was comparatively negligent in that she failed to use ordinary care when walking across the street.

Third Affirmative Defense

As and for an affirmative defense, the plaintiff failed to mitigate damages.

WHEREFORE, the Defendant requests that the Plaintiff take nothing by her complaint herein. The Defendant prays the court enter judgment dismissing the complaint.


Dated:_____________

Respectfully Submitted,



_______________________________
Tonya Morse
1235 Boardwalk Dr
Fort Collins, CO 80525
Phone Number: (307) 223-4567
FAX Number: (970) 223-9876
E-mail: tanyam@yahoo.com
Atty. Reg. #: 33455

Verification

State of Colorado )
) ss.
County of Larimer)

The undersigned, having been first duly sworn upon his oath, deposes and states that he is the Defendant in the above-referenced action, that he has reviewed the foregoing Answer, and that the statements made therein are true and correct to the best of his knowledge, information, and belief.


_____________________________
Dennis Dimwit
567 Harmony Ave
Fort Collins, CO 80525

Subscribed and sworn to before me by Dennis dimwit this 9th day of July, 2008.
Witness my hand and official seal. My commission expires:

____________________________
Notary Public
Address





CERTIFICATE OF SERVICE

I hereby certify that on the__day of___________2008, I served a true and correct copy of the foregoing answer upon Rick Jennings by placing the same in the U.S. mail to the address 1609 Oakridge Dr., Fort Collins, CO 80525.

Tonya Morse
Attorney at Law #33455
1235 Boardwalk Dr.
Fort Collins, CO 80525

Tuesday, February 2, 2010

Example Motion for Summary Judgment

0 Small Claims 0 County Court 1 District Court
0 Probate Court 0 Juvenile Court 0 Water Court
Larimer County, Colorado
Court Address: 201 LaPorte Ave.
Fort Collins, CO 80521

Scott Walker,

Plaintiff.

v.

Tanya Brewster,

Defendant.

Jessica Thompson, Attorney at Law
2345 Litigator Way
Fort Collins, CO 80525
Phone Number: (970)493-5555
FAX Number: (970)555-5555
E-mail: LLawyer@legal.com
Atty. Reg. #: 11111


Case Number:


Div.: Ctrm:

MOTION FOR SUMMARY JUDGMENT

The plaintiff appears by and through his attorney, Jessica Thompson, and respectfully submits this motion for summary judgment against the defendant, Tanya Brewster.

I. Jurisdictional Allegations

1. Venue for this complaint is correct pursuant to C.R.C.P. 98(c)(1).

2. This motion for summary judgment is within time constraints pursuant to C.R.C.P. 56.

II. Claims by Plaintiff

3. The plaintiff claims that the defendant acted negligently with the storage of the firearm in her home.

4. The plaintiff also claims that the defendant was negligent in her supervision of their minor child, T.J.




III. Undisputed Facts

5. In the defendant’s answers to question number 7 of the plaintiff’s interrogatory, she stated no affirmative defenses to the allegations stated in the complaint.

6. The defendant admits in her witness testimony that she didn’t know where the gun was stored or that it actually had a lock on it. The defendant stated that she did not know where the gun was located after admitting reading the handout, “Colorado Criminal Code §105: Criminal Storage of a Firearm,” that her boyfriend, Carl Newhouse, had given her, where it states that a person who would be found guilty under this statute would not know where a firearm was stored, or that it was secure with a trigger-lock or a lock on the container the firearm was stored in.

7. The negligence of the defendant in not knowing where the gun was stored or if it was properly locked, was the proximate cause of Jesse being shot. The defendant owed a duty to her child to make sure that the gun was locked and stored properly as well as know where it was stored. The defendant breached that duty, which was the proximate cause of T.J. to take the firearm, and shoot Jesse. The defendant is responsible for the monetary damages to the plaintiff’s son, Jesse, in the medical bills he incurred from the incident as well as the future bills he will incur due to his permanent disablement.


Verification

State of Colorado )
) ss.
County of Larimer )

The undersigned Plaintiff, having been first duly sworn upon his oath, deposes and states that he is the Plaintiff in the above-referenced action, that he has reviewed the foregoing Motion for Summary Judgment, and that the statements made therein are true and correct to the best of his knowledge, information, and belief.

_______________________
Scott Walker, Plaintiff

Subscribed and sworn to me before this _____day of _____20___, by.
Witness my hand and official seal. My commission expires:


______________________
Notary Public
Address: 1609 Oakridge Drive
Fort Collins, Co 80525


Dated: _August 25, 2008



CERTIFICATE OF SERVICE

I certify that on August 25, 2008 the original of this Motion was filed with the Court; and a true and accurate copy of this MOTION FOR SUMMARY JUDGMENT was served on the other party by placing it in the United States mail, postage pre-paid and addressed to the following:________________________________________.
______________________________________
 Petitioner/Plaintiff OR  Respondent/Defendant



ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT

This matter came before the court for review of the Respondent’s motion for summary judgment on August 25, 2008. The court reviewed the file and the motion and having been duly advised in the premises, hereby grants the same. Counsel for the Respondent will notice the matter in for setting of due-date of the answer within two weeks after the thirty days after being served are over. It will set forth that the defendant pay in the amount of $500,000, in lieu of the full amount requested by the plaintiff, to end this action.
BY THE COURT:
________________
Judge

Monday, February 1, 2010

Example Motion to Compel

 County Court District Court
_____Larimer_________ County, Colorado
Court Address:201 LaPorte Ave.
Fort Collins, CO 80521


Scott Walker,

Plaintiff.

v.

Tanya Brewster,

Defendant.









COURT USE ONLY
Jessica Thompson, Attorney at Law
2345 Litigator Way
Fort Collins, CO 80525
Phone Number: (970)493-5555
FAX Number: (970)555-5555
E-mail: LLawyer@legal.com
Atty. Reg. #: 11111 Case Number:




Division Courtroom
MOTION TO COMPEL


The plaintiff appears by and through his attorney, Jessica Thompson, and respectively submits this Motion to Compel against the defendant, Tanya Brewster.
For the following reasons:
1. Upon being served on July 17, 2008 thirty days has passed which is required by Colorado Rules of Civil Procedure Rule 33(b)(3), the defendant has still not answered our interrogatory nor has the defendant and their attorneys communicated with their intention to do so.
2. The attorney, Jessica Thompson, for the plaintiff, Scott Walker, has with due diligence and good faith attempted to contact the attorney for the Defendant in every way in order to seek the answer to the interrogatory.

Wherefore Plaintiff hereby requests the court to compel discovery of the interrogatory asked of the defendant, Tanya Brewster, by means of a judge’s order.



Verification

State of Colorado )
) ss.
County of Larimer )

The undersigned Plaintiff, having been first duly sworn upon his oath, deposes and states that he is the Plaintiff in the above-referenced action, that he has reviewed the foregoing Motion to Compel, and that the statements made therein are true and correct to the best of his knowledge, information, and belief.

_______________________
Scott Walker, Plaintiff

Subscribed and sworn to me before this _____day of _____20___, by .
Witness my hand and official seal. My commission expires:


______________________
Notary Public
Address: 1609 Oakridge Drive
Fort Collins, Co 80525


Dated: _August 17, 2008







CERTIFICATE OF SERVICE

I certify that on ________________________(date) the original of this Motion was filed with the Court; and a true and accurate copy of this MOTION TO COMPEL was served on the other party by placing it in the United States mail, postage pre-paid and addressed to the following: ______________________________________
______________________________________
______________________________________

______________________________________
 Plaintiff OR  Defendant



 County Court District Court
_____Larimer_________ County, Colorado
Court Address:201 LaPorte Ave.
Fort Collins, CO 80521


Scott Walker,

Plaintiff.

v.

Tanya Brewster,

Defendant.









COURT USE ONLY
Jessica Thompson, Attorney at Law
2345 Litigator Way
Fort Collins, CO 80525
Phone Number: (970)493-5555
FAX Number: (970)555-5555
E-mail: LLawyer@legal.com
Atty. Reg. #: 11111 Case Number:




Division Courtroom
ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL

This matter came before the court for review of the Plaintiff’s motion to compel discovery on August 17, 2008. The court reviewed the file and the motion and having been duly advised in the premises, hereby grants the same. Counsel for the Plaintiff will notice the matter in for setting of due-date when the defendant must comply with the plaintiff’s motion within one week of the courts entering of judgment.

BY THE COURT:

________________
Judge